The pothole was temporarily repaired within the next hour and fifteen minutes.
However, the man wanted Waka Kotahi to pay the excess cost of replacing his tyre and wheel rim to his insurer.
His claim drew on the Crimes Act and the Health and Safety Act and argued that NZTA had obligation to manage risks on the road and that failing to do so could be classed as “criminal nuisance”.
Tribunal referee Krysia Cowie noted that she didn’t have the jurisdiction to manage a dispute under those claims but could make a ruling under negligence as the man’s property had been damaged.
“The law of negligence provides that we owe a duty of care to ensure we do not cause a loss to someone else due to our conduct,” Cowie said.
The man considered that NZTA must have known about the pothole, or ought to have known about it from their own inspections and maintenance of the road. He said he travels that road regularly and there were other potholes that were then subject to a speed-reduced road work area.
Counsel for NZTA said that if the agency had knowledge of the pothole then they would have repaired it as they were contractually required to do so.
The tribunal said the burden of proof was on the man who’d brought the claim to prove that NZTA knew about the pothole and did nothing about it.
“The fact that other cars were damaged is insufficient evidence on which I could make a finding that most probably NZTA must have been aware of this pothole,” Cowie said.
“The evidence that I have is that within 75 minutes of being alerted to the pothole, it was repaired. I am therefore satisfied that if NZTA did owe motorists a duty of care in this instance, then it had not breached that duty as it responded quickly to fix the issue.”
Cowie dismissed the man’s claim for compensation in the form of cover for his insurance excess.
